An issue that needs to be acknowledged
by the parents is that if the adult child has sufficient
capacity to execute the powers of attorney in favor of
his or her parent, he or she can also execute powers of
attorney in favor of another person. An elderly
woman called me to express concern that her middle-aged
adult child with some mental impairment had recently
executed powers of attorney in favor of his girlfriend.
It was difficult to hear the elderly woman express her
concern that the girlfriend may take advantage of her
son. This is a real issue that needs to be
considered if powers of attorneys sound like an easy,
cost-effective solution to managing an adult child’s
care.

Even though executing a power of
attorney comes with its own complex issues, especially
when adult special needs children are slightly mentally
impaired and the determination of capacity is a close
call, a power of attorney is a far less invasive means
of providing for the care of a special needs adult
child. It requires almost no maintenance, unlike a
guardianship and conservatorship, and is a low-cost
method to ensure the continued care of the child by the
parents.

Other Considerations

When deciding whether to pursue a
guardianship and conservatorship of an adult child with
special needs or have the adult child execute powers of
attorney, it is imperative that the discussion includes
consideration of whether the child is receiving or will
receive public benefits (both Federal and local) and
whether the parent has completed his or her own estate
planning. Public benefits and the special needs
child go hand in hand with topics like appointing
Representative Payee for Social Security payments,
preparing special needs trusts, and the relationship of
the child to the parent’s own financial estate.

Conclusion

In evaluating whether a guardianship and
conservatorship or powers of attorney are appropriate, a
parent should consider the adult child’s mental
capacity, the ability of the child to manage his or her
own affairs, and the deprivation of rights imposed by a
guardianship and conservatorship. If the adult
child has the capacity to execute powers of attorney,
then that is a good first step. A formal
guardianship and conservatorship may then be sought
later, but only if needed.

Lori K.
Murphy, Esq. is a shareholder in the Arlington, Virginia
firm of Bean, Kinney & Korman PC and practices in
trusts, estate planning, and estate administration law.
She frequently designs estate plans for families that
include special needs children and incapacitated adults.
lmurphy@beankinney.com.
*Ms. Murphy was assisted in this article by Jason
Malashevich, Law Student, George Mason University School
of Law ‘2013, Law Clerk at Bean, Kinney & Korman, P.C.